Should Race Play a Role in Custody Decisions?

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Custody battles are an inflammatory business. Two people, already peeved enough with each other to dissolve their partnership, have to figure out who gets to look after the living, hugging product of that union. Throw in the combustible issue of race and you’ve got yourself a bonfire — like the one flaring up over Nahla, the 2-year-old daughter of Halle Berry and Gabriel Aubry.

Until recently, Oscar winner Berry, 44, and Canadian male model Aubry, 35, who split about a year ago, seemed to be keeping it together. Last summer, Aubry traveled to South Africa with Berry to look after Nahla while his ex-girlfriend was filming. But in early February Berry suddenly pulled out of another film, the romantic comedy New Year’s Eve shooting in New York City, and it wasn’t out of concerns about the script. (More on Mixed Race Celebrities on Race, in their Own Words)

She said didn’t want to leave Nahla with Aubry, who had declined to travel with her on that trip. In an unusually frank statement from a PR rep, Berry expressed “serious concerns for her daughter’s well-being while in the care of her father for any extended period of time.” The statement said Berry was prepared to take “all necessary steps to protect [Nahla]” including “swift judicial intervention.”

From there things got uglier. Accusations, mostly anonymous, were leveled against Aubry, implying that he had a bad temper, was verbally threatening, used a racial slur in reference to his ex- and took exception when people called his daughter black. (More on Should the Parents of Morbidly Obese Children Lose Custody?)

Berry, who faced her own set of anonymous accusations, mostly implying that she’s unstable, is already on the record as saying she regards her daughter to be black, just as Berry identifies as black, even though her mother is white. “I feel she’s black,” she tells Ebony magazine in the current issue. “I’m black and I’m her mother, and I believe in the one-drop theory.”

The one-drop theory — a Jim Crow–era classification that labeled anyone with one drop of African American blood in their family history as black — is a thesis that few regard as the noblest piece of thinking in the history of race relations in America. That Berry would invoke it raised some eyebrows. (More on Who’s White? Who’s Black? Who Knows?)

Is this all a ploy to get the upper hand in a looming feud over who will get Nahla? The courts have historically considered race as a factor in deciding custody cases, usually acknowledging that the minority parent would have a better understanding of the kinds of issues that the child will face as he or she forges her own identity.

The precedent was set more than 50 years ago in Ward v. Ward, which awarded a black father with primary custody of two biracial daughters. “These unfortunate girls, through no fault of their own, are the victims of a mixed marriage and a broken home,” the judge wrote in language that we, ah, wouldn’t use today. “They will have a much better opportunity to take their rightful place in society if they are brought up among their own people.” (More on Are Mixed Race Children Better Adjusted?)

More recently the courts have lessened their emphasis on the role of race in favor of looking at the bigger picture of what works for the kid. “The law is fairly settled now in terms of wanting the best interest of the child — you can’t consider the race of one parent alone,” says Kevin R. Johnson, Dean of the law school at UC-Davis. “Race can play some role, but mostly in terms of which parent can best foster a healthy sense of racial identity.”

Davis, author of Mixed Race America and the Law, suspects that some of the racial sword-crossing is legal maneuvering. “It’s hard to imagine that Halle Berry would agree with the one-drop rule when it was dealing with segregation rules on a train in Louisiana,” he says. “That’s why I think it’s important for the court to step back – considering all the facts, who is the primary care provider, who’s more committed to spending time with the child. As opposed to ‘she looks like me.’” (More on Passing as Black: How Biracial Americans Choose Identity)

It’s possible that Berry, whose work will often take her away from her child for long periods of time, is afraid that she might be seen by the courts as the less-available parent. On the other hand, a healthy attitude toward race and an understanding of racial identity are important to the development of children, particularly those from a multiracial background.

The issue of race and custody is becoming more pressing not just because famous people are now involved but because, according to analysis by the Pew Center, 1 in 7 marriages now involve people from different ethnic backgrounds. (More on How Kids Get Clobbered by Racial Discrimination)

“Sometimes multiracial people don’t know how they fit in, so they have trouble within themselves,” says Davis. “We think parental support is important to developing healthy racial identity. So, really, the courts are looking at the parent who is going to foster racial health. That’s where [race] is going to come up.”

Luckily Nahla can’t read yet, because according to the latest reports, her parents’ feud isn’t shaping up well.

With reporting by Meredith Melnick